Officer cleared in December shooting death

Saturday

Jul 9, 2011 at 12:01 AMSep 10, 2014 at 9:25 AM

PETERSBURG - A special prosecutor investigating the shooting death last December of a Petersburg man during a traffic stop has determined that the police officer acted within the law and no charges will be filed.Henrico County Commonwealth's Attorney Wa

PETERSBURG - A special prosecutor investigating the shooting death last December of a Petersburg man during a traffic stop has determined that the police officer acted within the law and no charges will be filed.

"Considering the totality of the circumstances involved in the instant case, it cannot be said that Officer Marks did not reasonably fear either death or serious bodily injury or that the amount of force used was excessive," Kizer wrote in his report.

Kizer's finding was based on police reports filed at the time of the shooting as well as the results of an investigation by Virginia State Police Bureau of Criminal Investigation's Richmond Field Office. The evidence included statements from several other Petersburg Police officers and two residents who witnessed at least part of the incident.

According to the report, Marks was responding to a call around 11:20 p.m. concerning a hit-and-run accident on Sycamore Street. The driver of the vehicle involved was reported to be fleeing south on Sycamore.

Driving south on Jefferson Street, Marks saw a 1986 Toyota "headed straight toward him" in his own lane. "The car only moved at the last moment," the report said.

Marks turned on his emergency lights and siren and turned around. The other vehicle, according to Marks, "accelerated and turned onto Fillmore Street. The driver then pulled to the curb and stopped" in the 300 block of East Fillmore.

Marks parked behind the other vehicle, radioed in to report the stop, then got out and approached the other vehicle. He said he smelled marijuana in the car and noticed that the vehicle was damaged.

The driver, who was identified as Lee, cooperated at first, giving Marks his driver's license and registration. Marks asked about the damage to the car, and Lee said "something about maybe hitting a guardrail around the 7-Eleven," according to Marks' statement.

While this was going on, Officer D.J. Mason arrived on the scene and approached the passenger side of Lee's car. Both officers told investigators that Marks had informed Lee he was not being arrested but would have to be handcuffed.

According to the report, "Lee jerked away and got back into his car" and started the engine. Marks tried to pull Lee out, and the car began traveling forward "with Officer Marks hanging out of the car" and "telling Lee to stop several times" with increasing urgency.

"Stop the car or I will kill you," Marks finally said, and pulled out his firearm, which he said Lee pushed away. After traveling about 180 feet, the car hit a street sign and stopped.

Another policeman, Officer D.W. Sloan, had arrived a few moments before as the car was dragging Marks down the street. When it hit the street sign, Sloan jumped in on the passenger side and tried to take the keys.

With Sloan pushing Lee from inside the car, Marks was able to pull Lee to the ground, where they struggled. Marks told Lee not to move, but as he reached for his handcuffs, Lee pulled loose and got back into his car.

Sloan got out of the vehicle, but Marks grabbed Lee again as the car began to move backwards with Marks holding on to Lee and the steering wheel, according to the report. The vehicle slewed wildly, doing "almost a 180," Sloan told investigators.

"Marks said he felt that if he let go, the car was going to run over him," the report said. Investigation after the incident determined that the car traveled about 45 feet while in reverse.

Marks and other officers were yelling at Lee to stop the car, the report said. "According to Marks, he was begging Lee to stop as the car traveled backwards," it said. Lee responded with an obscenity and Marks again threatened to shoot him if he didn't stop, according to the report.

"Lee did not stop. Marks fired one round which struck Lee," the report said. According to autopsy results and investigators from the state Department of Forensic Science, the bullet struck Lee in the chest from less than two feet away.

More police officers had arrived on the scene by the time Marks fired the shot, and some of them "began doing chest compressions on Lee," according to the report. He was taken to a hospital where he was pronounced dead.

Kizer was named special prosecutor in the case at the request of Petersburg Commonwealth's Attorney Cassandra S. Conover, who told The Progress-Index in March that she was removing herself from it "to avoid any conflict of interest or appearance of impropriety."

Kizer based his findings on state law regarding self-defense, which he said allows an individual "to exercise reasonable force to repel the assault."

In his review of the evidence, Kizer noted that Lee had been seen driving recklessly and that afterward his blood tested positive for a high level of marijuana.

"The law recognizes an automobile can be considered a deadly weapon depending on the manner in which it is used," Kizer noted.

In this case, he wrote, "There would have been no way for Marks to know when, where or how the vehicle would stop nor what speed it might obtain before it stopped. Either hanging on to the moving vehicle or dropping off the moving vehicle could have resulted in serious injury or death."

- Michael Buettner may be reached at 804-722-5155 or mbuettner@progress-index.com.

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